[J-4-2020] [MO: Todd, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
NICOLE B., INDIVIDUALLY AND ON : No. 16 EAP 2019
BEHALF OF N.B., :
: Appeal from the Order of
Appellant : Commonwealth Court dated
: December 17, 2018 at 868 C.D.
: 2018 affirming the Judgment entered
v. : on October 4, 2017 in the Court of
: Common Pleas, Philadelphia
: County, Civil Division at 3745 April
SCHOOL DISTRICT OF PHILADELPHIA, : Term 2014.
JASON JOHNSON AND JALA PEARSON, :
: ARGUED: March 10, 2020
Appellees :
DISSENTING OPINION
JUSTICE WECHT DECIDED: September 16, 2020
The Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §§ 951-63, requires
that “[a]ny complaint” alleging discrimination covered by its terms must be filed with the
Pennsylvania Human Relations Commission (“PHRC”) “within one hundred eighty days
after the alleged act.” Id. § 959(h). By invoking that complaint procedure, a complainant
preserves his or her right subsequently “to bring an action in the courts of common pleas
of the Commonwealth based on the right to freedom from discrimination granted by” the
PHRA. Id. § 962(c)(1). Although the failure to timely file a complaint with the PHRC
ordinarily would preclude a complainant from subsequently pursuing litigation in the
courts of common pleas, Clay v. Advanced Computer Applications, Inc., 559 A.2d 917,
918-20 (Pa. 1989), those time limits are “subject to waiver, estoppel and equitable tolling,”
43 P.S. § 962(e). Today’s Majority concludes that the PHRA’s equitable tolling provision
subsumes the age of minority, such that a person alleging discrimination as a child need
not file a complaint within the law’s 180-day time limits. Because I do not share the
Majority’s view that traditional equitable tolling principles inherently encompass tolling
during the period of minority, I respectfully dissent.
Preliminarily, it appears that Nicole B. (“Mother”) waived the issue of equitable
tolling by not adequately preserving it in the trial court. In her response to the Philadelphia
School District’s (“the District”) summary judgment motion, Mother briefly mentioned
equitable tolling in a discussion focused upon the interplay between the PHRA and the
Minority Tolling Statute (“MTS”), 42 Pa.C.S. § 5533. See Plaintiff’s Response in
Opposition to Defendant School District of Philadelphia’s Motion for Summary Judgment,
5/4/2017, at ¶103 (“Defendant has raised and this Court has rejected the argument that
the minority tolling provision does not apply to Plaintiff’s PHRA claims on five previous
occasions. The PHRA does specifically provide for equitable tolling.”); Memorandum of
Law in Support of Plaintiff’s Response to Defendant School District’s Motion for Summary
Judgment at 27 (“The Act also specifically provides for equitable tolling. See 43 Pa.[C.S.]
§ 962(e). A narrow interpretation of this equitable provision that precludes minority tolling
would contravene the Act’s directive to liberally construe its provisions to achieve its goal
of eliminating discrimination.”).
Mother then included the following conclusory statement in her motion to remove
nonsuit following a trial on her son’s claims: “The Court erred in holding that the equitable
tolling exceptions contained in the [PHRA] do[] not encompass Pennsylvania’s minority
tolling provision. Plaintiff preserved this issue by filing a response to Defendant’s Motion
for Nonsuit.” Plaintiff’s Motion for Post Trial Relief Pursuant to Pa.R.C.P. 227.1 to
Remove Nonsuit for Defendants and/or Grant a New Trial, 8/17/2017, at ¶6. However,
Mother’s response to the District’s motion for nonsuit failed even to mention equitable
tolling. Nor does it appear anywhere in the memorandum of law attached to her motion
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to remove nonsuit, which is a near reproduction of the memorandum that she filed in
opposition to summary judgment, save for the excised portion invoking the PHRA’s
equitable tolling provision. Although the Majority rejects the invocation of the waiver
doctrine here because the District failed to raise it before the Commonwealth Court, Maj.
Op. at 10 n.4, I do not consider Mother’s cursory manner of advocacy sufficient to save
for appellate review a weighty issue that she did not expressly assert in her motion to
remove nonsuit.
Notwithstanding these waiver concerns, I strongly disagree that subsection
962(e)’s equity exception subsumes considerations of minority. Equitable tolling is “a
long-established feature of American jurisprudence derived from ‘the old chancery rule.’”
Lozano v. Montoya Alvarez, 572 U.S. 1, 10-11 (2014) (quoting Holmberg v. Armbrecht,
327 U.S. 392, 397 (1946)). “Generally, a litigant seeking equitable tolling bears the
burden of establishing two elements: (1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005); see, e.g., Young v. United States, 535 U.S. 43, 53 (2002)
(“[T]olling is inappropriate when a claimant has voluntarily chosen not to protect his rights
within the limitations period.”); Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 151
(1984) (“One who fails to act diligently cannot invoke equitable principles to excuse that
lack of diligence.”); McQuiddy v. Ware, 87 U.S. (20 Wall.) 14, 19 (1873) (“Equity always
refuses to interfere where there has been gross laches in the prosecution of rights.”).
In discussing the doctrine, the United States Supreme Court has cautioned that
such relief should be extended “sparingly.” Irwin v. Dep’t of Veterans Affairs, 498 U.S.
89, 96 (1990). To that end, the High Court has noted that the doctrine appropriately is
invoked where a plaintiff has been “injured by . . . fraud [and] remains in ignorance of it
without any fault or want of diligence or care on his part.” Bailey v. Glover, 88 U.S. (21
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Wall.) 342, 348 (1874). Equitable tolling also has been “allowed . . . in situations where
the claimant has actively pursued his judicial remedies by filing a defective pleading
during the statutory period,” e.g., filing an otherwise timely complaint in the wrong forum.
Irwin, 498 U.S. at 96. And although the High Court has commented that tolling may be
available where “some extraordinary circumstance prevents [a plaintiff] from bringing a
timely action,” Lozano, 572 U.S. at 10, there is a dearth of authority regarding the kinds
of events that would satisfy this amorphous condition, see McQuiddy, 87 U.S. at 19
(“There is no artificial rule on such a subject, but each case as it arises must be
determined by its own particular circumstances.”).
Here, Mother asserts that her son’s status as a minor, without more, should suffice
to toll the limitations period for the PHRA complaint she belatedly filed on his behalf.
However, she cites no authority from this jurisdiction or any other for the proposition that
the period of minority constitutes an “extraordinary” circumstance, which I take to mean
some event that rises to the level of a force majeure, i.e., something effectively beyond a
diligent party’s control. The Majority notes two decisions from state courts of last resort
permitting equitable tolling upon consideration of minority, neither of which provides much
support for Mother’s position. See Maj. Op. at 16-17 (citing Lafage v. Jani, 766 A.2d
1066, 1073 (N.J. 2001); Wimberly v. Gatch, 635 So.2d 206, 217 (La. 1994)). In Wimberly,
the Supreme Court of Louisiana invoked the doctrine of contra non valentem, which
includes that State’s discovery rule, to suspend the prescription period for a cause of
action arising from sexual abuse of a minor whose parents had no knowledge of, and
could not reasonably discover, the abuse within the limitations period. Wimberly, 635
So.2d at 216. Because an “unemancipated minor does not have the procedural capacity
to sue . . . under Louisiana’s legal framework,” that child’s parents could not bring suit on
his behalf until they discovered his injury, which was well after the prescription period had
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lapsed. Id. Here, by contrast, Mother admits that she discovered her son’s injury well
within the limitations period for filing an administrative complaint with the PHRC, but
inexplicably waited more than two years before taking action. See Fine v. Checcio, 870
A.2d 850, 857 (Pa. 2005) (“Mistake, misunderstanding, or lack of knowledge in
themselves do not toll the running of the statute.”).1
The Supreme Court of New Jersey’s decision to apply minority tolling to the State’s
Wrongful Death Act in Lafage is particularly inapposite given the considerations unique
to that State that were central to the Court’s decision, namely its historical “distinction
between a procedural statute of limitations and a substantive one.” Lafage, 766 A.2d at
1070. Pertinently, New Jersey courts traditionally viewed statutes of limitations as
procedural if they “govern[ed] general causes of action, such as tort or contract actions,
that were recognized under the common law.” Id. at 1071; see id. (“The running of a
procedural statute of limitations bars only the remedy, not the right that existed at common
law.”). The Lafage Court began by looking to an early 17th century English statute that,
“among other things, allowed tolling of accrual of a cause of action for personal injuries
until a person was twenty-one years of age,” id. at 1072, and that subsequently “‘was
declared in force in the province of New Jersey in 1728 and re-enacted by the State
Legislature in 1799.’” Id. (quoting O’Connor v. Altus, 335 A.2d 545, 558 (N.J. 1975)). The
Court then observed that “[t]he New Jersey Constitution of 1776 provided that ‘the
common law of England, as well as so much of the statute law, as have been heretofore
practiced in this colony, shall still remain in force, until they shall be altered by a future
law of the legislature.” Id. (quoting N.J. CONST. of 1776, art. XXII). Because minority
1 In Fine, this Court considered whether a statute of limitations could be equitably
tolled under the discovery rule and the doctrine of fraudulent concealment. See Fine, 870
A.2d at 858-61. Mother does not argue that her son’s PHRA claim should be tolled for
either of these reasons.
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tolling for personal injuries predated the promulgation of New Jersey’s Wrongful Death
Act of 1848 by more than fifty years, the Court concluded that the Legislature “reasonably
could have believed that it would be superfluous to include a separate infancy tolling
provision within the” Act itself. Id.
The Lafage Court then identified a second, independent reason why minority tolling
should apply to the particular statute at issue in that case: unlike the common law of
England, “wrongful death claims were cognizable at common law” in New Jersey. Id. at
1076. The Court explained:
Four years after the adoption of New Jersey's Constitution of 1844, New
Jersey adopted its first Wrongful Death Act in 1848. The Act was modeled
after Lord Campbell’s Act of 1846. That fact is highly significant because
the common law of England has a constitutional basis in our State. “New
Jersey's Constitution of 1776 provided that the common law of England (as
well as so much of the statute law) as was practiced in the colony should
remain in force until altered by the Legislature (Art. XXII) and the
Constitution of 1844 provided that the common law (and statute laws) shall
remain in force until they expired by their own limitation or were altered by
the Legislature (Art. X, par. 1).” Collopy v. Newark Eye & Ear Infirmary, 141
A.2d 276 (N.J. 1958); State v. One 1990 Honda Accord, 712 A.2d 1148
(N.J. 1998); State v. Smith, 426 A.2d 38 (N.J. 1981). In England, no
common law cause of action for wrongful death existed. Baker v. Bolton,
170 Eng. Rep. 1033 (Nisi Prius 1808). . . .
Lord Campbell’s Act of 1846 created a statutory action for wrongful death.
The preamble to Lord Campbell’s Act of 1846 was a parliamentary
declaration of what the English common-law rule was at that time. That Act
created a civil cause of action for deaths that had been caused under
circumstances that would amount to a felony under the criminal laws.
Our Act of 1848, however, did not include the preamble contained in Lord
Campbell’s Act declaring that no cause of action existed at common law for
wrongful death. In addition, when our Act became law in 1848, the only
reported cases in American law were those that allowed for the recovery of
damages for the death of another. . . .
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Legal historians have concluded that the sole substantial reason why the
English common law rule disallowed a wrongful death cause of action was
the felony-merger doctrine. Under the felony-merger doctrine, no civil
recovery was permitted under the common law for an act that constituted
both a tort and a felony. The felony was against the Crown and was deemed
more serious than the tort, and thus the tort was merged into, or pre-empted
by, the felony. . . . Viewed in its historical context, it becomes apparent that
when our Legislature adopted our Wrongful Death Act, its failure to include
the preamble to Lord Campbell’s Act means that our Legislature
intentionally altered the English common law announced in Baker at the
time it enacted our Wrongful Death Act in 1848. Stated differently, our Act
of 1848 left in place the pre-Baker English common law that had been
adopted at the time of our Constitution of 1776.
Id. at 1076-77 (cleaned up). “The practical effect of recognizing” that New Jersey’s
Wrongful Death Act was a codification of the State’s common law, in the Court’s view,
was “that it provide[d] an independent basis on which to allow equitable tolling” of the
Act’s limitations period. Id. at 1077. In short, because the Act’s statute of limitations was
demonstrably “procedural,” the Court deemed it “indisputably . . . subject to equitable
principles” that predated New Jersey’s statehood by more than half-a-century—e.g.,
minority tolling. Id.
Pennsylvania, conversely, has never recognized the age of minority as an
equitable consideration per se. In fact, more than two centuries ago, this Court held that
statutes of limitations “bind[] every member of the community,” including minors, unless
the General Assembly expressly provides otherwise. Mobley v. Oeker, 3 Yeates 200,
202 (Pa. 1801). As the Commonwealth Court accurately explained, Pennsylvania courts
consistently have rejected the interchangeability of equitable and minority tolling. Nicole
B. v. Phila. Sch. Dist., 868 CD 2018, 2018 WL 6596377, at *5-6 (Pa. Cmwlth. Dec. 17,
2018). For instance, in DeSantis v. Yaw, 434 A.2d 1273 (Pa. Super. 1981), a minor
plaintiff filed an action in trespass and sought to toll the two-year limitations period under
equitable principles. Although the Superior Court expressed concern that a minor might
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lose his ability to bring a cause of action due to his parents’ failure to timely file a suit, it
found no authority for waiving the statute of limitations based solely upon the plaintiff’s
status as a minor absent specific statutory language imposing that right. The court
concluded that the minor’s claims were linked with those of his parents, and thus were
time-barred. Id. at 1275-77; see also Dalrymple v. Brown, 701 A.2d 164, 170 (Pa. 1997)
(rejecting claim that plaintiff’s repressed memory from childhood injury sufficed to
equitably toll the statute of limitations period for a battery action pursuant to the discovery
rule); Redenz by Redenz v. Rosenberg, 520 A.2d 883 (Pa. Super. 1987) (holding that
minority was not a basis for applying equitable tolling to a negligence claim, which had
accrued before the effective date of the MTS).
Our General Assembly is presumed to know that exceptions to limitations periods
for minors apply only if it expressly provides for such exceptions. By enacting the MTS,
the Legislature explicitly limited minority tolling to certain time periods (those in
subchapter B of chapter 55 of the Judicial Code) governing the filing periods of certain
acts (civil actions initiated in a court of law). See 42 Pa.C.S. § 5533(a). In a sense, the
MTS occupies the field of most civil actions governed by the Judicial Code. For those
statutes whose limitations periods for civil actions are not covered by subchapter B,
however, the General Assembly made a considered choice to include or exclude minority
tolling. Examples of statutes expressly incorporating minority tolling include the Medical
Care Availability and Reduction of Error Act (“MCARE”) statute of repose, 40 P.S. §
1303.513(c); the Fraud and Abuse Control Act, 62 P.S. § 1409(b)(4)(iii)(D); and the Motor
Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1721(b). But the PHRA was not
similarly treated. Accordingly, the General Assembly plainly signaled its intention not to
expand minority tolling beyond its carefully prescribed confines.
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Having conspicuously excluded from the PHRA an explicit exception for minors,
the Legislature presumably understood, and therefore intended, that a litigant’s age would
not toll that statute’s limitations period. Yet the Majority treats the absence of minority
tolling from the PHRA as a factor favoring Mother’s expansive formulation of the equitable
tolling doctrine, thus elevating an ordinary fact of life such as age to the level of an
“extraordinary” condition. If equity now encompasses minority, as the Majority’s holding
logically would suggest, what role is left for the MTS? It appears to be superfluous. This
Court should have encouraged Mother to harness the sympathetic circumstances of her
son’s case to persuade the General Assembly to fix the PHRA’s apparent shortcomings
via amendment in adherence with the clear terms of the PHRA. Instead, the Majority
merely bypassed the legislative process to shoehorn Mother’s policy views into the
statute’s formerly narrow equitable exceptions to filing an administrative complaint.
Such a construction also is contrary to how courts have interpreted the statute of
limitations provision governing the Equal Employment Opportunity Commission
(“EEOC”), the PHRC’s federal counterpart. See 42 U.S.C. § 2000e-5(e). Like the PHRA’s
complaint mechanism, the EEOC’s 180-day time limit for filing a charge under Title VII of
the Civil Rights Act of 1964 is “subject to waiver, estoppel, and equitable tolling.”
Hallstrom v. Tillamook Cty., 493 U.S. 20, 27 (1989) (citing Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393 (1982)). But no federal court has held that minority tolling belongs
within the traditional considerations of equity in these circumstances. Of course, while
the federal courts’ interpretation of federal law does not bind this Court’s assessment of
a Pennsylvania statute, those decisions certainly are instructive in the analysis of textually
and structurally analogous federal provisions that served as the model for the statute
under review. See Chmill v. City of Pittsburgh, 412 A.2d 860, 871 (Pa. 1980) (“[T]he
Human Relations Act should be construed in light of ‘principles of fair employment law
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which have emerged relative to the federal (statute).”) (cleaned up). The Majority simply
overlooks that glaring inconsistency.
Though “we must be cognizant of the consequences of a particular interpretation,”
Pa. Human Relations Comm’n v. Chester Sch. Dist., 233 A.2d 290, 298 (Pa. 1967), it is
difficult to see how the PHRA’s goal of addressing discriminatory practices principally
through conciliation would be better served if those alleging unlawful practices could hold
their claims in abeyance for upwards of eighteen years (plus 180 days) before initiating
the complaint process. But the Majority’s holding ensures that result. Construing the
PHRA to permit protracted tolling inevitably will impair the Commission’s ability to conduct
effective investigations into allegations of discrimination. The PHRA’s time constraints
are no doubt stingy, but no less so than the federal analogue. This is an issue best left
to the General Assembly to address, as it has done in other contexts when presented
with compelling evidence that existing time constraints for filings had the practical effect
of excluding meritorious claims. See, e.g., Act of Oct. 24, 2018, P.L. 894, No. 146
(codified at 42 Pa.C.S. § 9545(b)(2)) (extending the time limits for filing facially untimely
PCRA petitions invoking a time-bar exception from sixty days to one year). The Majority’s
approach today certainly may be creative, but “creativity cannot replace common sense.”
Dalrymple, 701 A.2d at 170. For these reasons, I respectfully dissent.
Chief Justice Saylor and Justice Donohue join the dissenting opinion.
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